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Garvin v. Progressive Casualty Insurance Co.

May 10, 2010


The opinion of the court was delivered by: Goldberg, J.


This case arises from Plaintiff, Robert D. Garvin's, allegations that Defendant, Progressive Casualty Insurance Company, discharged him from his employment in violation of the Americans with Disabilities Act (hereinafter "ADA"), and the Pennsylvania Human Rights Act (hereinafter "PHRA"). 42 U.S.C. § 12101, et seq.; 43 PA. CONS. STAT. ANN. § 951, et seq. (respectively).

Plaintiff also raises retaliatory claims under the ADA and the Family Medical Leave Act (hereinafter "FMLA").*fn1 29 U.S.C § 2601, et seq.

Presently before the Court is Defendant's motion for summary judgment which seeks dismissal of the disability discrimination claim based upon Plaintiff's failure to establish a prima facie case of discrimination. Defendant also seeks dismissal of the retaliation claims asserting that there is no causal connection between Plaintiff's protected activities and his firing. For the reasons that follow, we will grant Defendant's motion.


Plaintiff began his employment at Progressive in March 1997, as an investigator in the special investigations unit (hereinafter "SIU"). Plaintiff's responsibilities included identifying and investigating suspected instances of fraud. Plaintiff became a manager in 1999, where he oversaw eight (8) SIU investigators, investigated major cases, prepared the fraud plan required by the Pennsylvania Department of Insurance, supervised other investigations, and conducted quality review. (Pl. Dep., pp. 44, 50, 53, 58, 63.)

The evidence of record reflects that Defendant was generally satisfied with Plaintiff's performance, however, Plaintiff did receive a lower performance review rating in 2004 for improper conduct during a training course. Around that time, warnings were also issued to Plaintiff regarding his written and oral communication skills. (Pl. Dep., pp. 94, 96-97, 206, 283; Lloyd Dep., pp. 13, 16, 88.)

On August 10, 2005, Plaintiff had a laparoscopic cholecystectomy to remove his infected gall bladder. Due to complications from that surgery, Plaintiff took FMLA leave from August 10, 2005, to October 24, 2005, and returned to work without any medical restrictions. He testified that he "did everything afterward that I did before." However, because of his "constant diarrhea," which, according to Plaintiff, was the result of the surgery, and the need to have bathroom facilities readily available, Plaintiff requested a temporary reprieve from travel. This request was approved by Plaintiff's supervisor, Kurt Lloyd, without the necessity of medical documentation. Plaintiff stated that while he needed to avoid stress, he was able to fully perform his job. Plaintiff also testified about ongoing memory problems, but claimed that it never affected his work performance or that he needed a work accommodation. Aside from the gall bladder surgery, Plaintiff has not produced any medical documentation supporting the above ailments. (Pl. Dep., pp. 141-44, 161, 165-68, 193-95, 225-27, 470, 567, 570, 585-87; Lloyd Dep., pp. 38, 91.)

Plaintiff claims that when he returned to work several comments were made about his health. According to Plaintiff, Lloyd expressed concern about his ability "to perform [his] job the way [he] did before," "with all the stress and everything." Pete Davis, then Defendant's Pennsylvania State Claims Manager (but not one of Plaintiff's direct managers), had lunch with Plaintiff to explain his concerns regarding Plaintiff's management of subordinates. According to Plaintiff, Davis stated that "there's more anger noticeable following [Plaintiff's] return from disability leave," and that Plaintiff was still having difficulties with his communication skills. Defendant, however, did not consider these problems to be major performance issues. (Pl. Dep., pp. 208-10, 227-28, 253, 260-62, 312-13; Davis Dep., pp. 17-18, 21-22, 28-29, 31-32; Lloyd Dep., pp. 53-55; Butler Dep., p. 27.)

Plaintiff received a performance ranking of "meets expectations," on both his 2005 and 2006 performance reviews. His 2006 review noted that he had worked on his communication issues and was improving. These reviews were consistent with all of Plaintiff's reviews dating back to 2002, in that his performance was rated as "meets expectations" or "meets expectations at a high level." (Pl. Dep., pp. 206-07, 403; Butler Dec., ¶¶ 6-7.)

In March 2006, New Jersey was added to Plaintiff's responsibilities as SIU manager, and he was increased from a manager level 2 to a manager level 3. In June 2006, Plaintiff alleges that Jim Rogers, Defendant's Pennsylvania State Manager, indicated that he was aware that Plaintiff had been sick and was concerned about his ability to keep up with the company's new referral process. (Pl. Dep., pp. 93, 304, 312-13, 332, 388.)

Plaintiff alleges that shortly therafter, he informed Steven Garfunkel, Progressive's Associate General Counsel, that managers were making comments about his health. Garfunkel did not recall such a conversation. Importantly, however, Plaintiff acknowledges that there were no more comments made to him about his health after the alleged conversation with Garfunkel. (Pl. Dep., pp. 368-69, 373, 399, 403; Garfunkel Dep., p. 9.)

A year later, on May 22, 2007, Plaintiff, accompanied by his girlfriend Cathy, traveled to Pittsburgh, Pennsylvania, for business. Plaintiff intended to meet with several police officers regarding a "sting vehicle," investigate the activities of one (1) of his subordinates, Don Girasia, and search for a vendor for the fire/theft team. Plaintiff conducted a ride-along with Girasia during which he checked Girasia's mileage log. There he told Girasia that he was having dinner that evening with Detective Christenson of the Penn Hills Police Department. (Pl. Dep., pp. 436-38, 458, 573; Girasia Dep., pp. 23-29, 32-33.)

The same day, Plaintiff and his girlfriend had dinner at the Grand Concourse in Pittsburgh. Plaintiff paid for the dinner in the amount of $79.82, and subsequently submitted an expense report identifying his dinner companions as Christenson and Sergeant Wetmore, of the Allegheny County Police. Defendant reimbursed Plaintiff for the full amount of the dinner. It is undisputed that neither Christenson nor Wetmore attended the dinner. (Pl. Dep., pp. 458-60, 462-63, 465-67, 511-12, 515; Erich Dep., p. 48; Wetmore Dec., ¶ 3; Christensen Dec., ¶ 3.)

In June 2007, Plaintiff's inaccurate expense report was brought to the attention of Joel Erich, one of Defendant's internal investigators. Erich contacted his supervisor and they decided to conduct an internal investigation. During the investigation, Erich obtained a copy of the dinner receipt from the restaurant. Erich also notified Timothy Butler in human resources and interviewed Girasia and Plaintiff. During this interview, Plaintiff gave varying accounts of who attended the dinner in Pittsburgh, but finally admitted that neither Christenson nor Wetmore were in attendance. Erich then contacted Wetmore and Christenson, but only reached Wetmore, who confirmed that he had not attended dinner with Plaintiff.*fn2 Based on this investigation, Erich concluded that Plaintiff had violated company policy by "submitting false or misleading information deliberately, knowingly creating false or misleading entries in the company's books or records, including electronic systems." This conclusion was presented to human resources and Lloyd, Plaintiff's manager. (Pl. Dep., pp. 461-66, 468, 471-72, 474, 476-77, 479-80, 508-17, 519, 521-22, 525-26, 529; Erich Dep., pp. 10, 16-17, 28-31, 33-34, 41, 43-46, 48, 52-56, 67-74; Christenson Dec., ¶¶ 3-4.)

On July 6, 2007, Lloyd decided to terminate Plaintiff for knowingly filing a false expense report in violation of company policy. Although he did consult with human resources, Lloyd was the sole individual who made ...

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